Conde v. Williams

6 A.D.3d 569, 774 N.Y.S.2d 834

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 19, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff Danny Postell appeals from a judgment of the Supreme Court, Queens County (Huttner, J.), entered March 11, 2004, which dismissed the complaint insofar as asserted by him. The plaintiffs notice of appeal from an order of the same court dated April 2, 2003, is deemed a premature notice of appeal from the judgment (see CPLR 5520 [c]).

Ordered that the judgment is reversed, without costs or disbursements, the complaint insofar as asserted by the appellant is reinstated, and the matter is remitted to Supreme Court, Queens County, for trial.

The Supreme Court denied the appellant’s request for a brief continuance due to the unavailability of his medical witness, and dismissed the action insofar as asserted by him prior to the commencement of the liability phase of the trial. This was an improvident exercise of discretion, since the testimony of the appellant’s medical witness was material and the request for a brief continuance was not made for the purpose of delay (see Romero v City of New York, 260 AD2d 461 [1999]; Evangelinos v Reifschneider, 241 AD2d 508 [1997]; Goichberg v Sotudeh, 187 AD2d 700 [1992]). Accordingly, we reverse, reinstate the complaint insofar as asserted by the appellant, and remit the matter to the Supreme Court, Queens County, for trial.

In light of our determination, the appellant’s remaining contention has been rendered academic. Prudenti, P.J., Florio, H. Miller, Schmidt and Cozier, JJ., concur.